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Kellogg v. Harrington

The Court of Appeals of Washington, Division Two
Apr 21, 2009
149 Wn. App. 1054 (Wash. Ct. App. 2009)


No. 36229-5-II.

April 21, 2009.

Appeal from a judgment of the Superior Court for Clark County, No. 04-2-04611-8, John F. Nichols, J., entered March 23, 2007.

Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Hunt, JJ.


Joseph and Julianne Leas own two parcels of property near the Columbia River that are separated by a strip of land 20 feet wide. The deed for these two parcels separately describes each parcel as excepting 10 feet for the easement at issue in this appeal. The trial court found that an express appurtenant easement existed for numerous landowners' (Harrington) access to the Columbia River within the 20 foot strip. The Leases appeal, arguing that the trial court erred because the easement is actually 30 feet wide and is located 10 feet further south, which places it on their property.

The respondents are Laura Harrington, Sharon Brainard, Mark and Joanna Lasof, Don and Christy Ellertson, Ross and Christine Bear, Kathy Marshack, and R. L. Jacob as trustee of the R. L. Jacob Living Trust. For simplicity, we jointly refer to them as Harrington.

Harrington argues that the Leases do not have standing to appeal because they are not a party aggrieved by the trial court's decision and that the trial court did not err in its findings and conclusions establishing the location and width of the easement. Kathy Marshack argues in her cross appeal that the trial court erred in ruling that the easement was limited to pedestrian use, she had not acquired a prescriptive easement, and she has no right to pedestrian access to the Kellogg Trust's tidelands under the public trust doctrine. We dismiss the Leases' appeal and affirm the trial court's rulings on issues raised in Marshack's cross appeal.

Because this case involves numerous parties and parcels of property, we identify the parties' roles at the trial court and on appeal and describe the common references to the properties involved. The plaintiffs at trial were the Kellogg Trust and the Leases. The Leases appeal, but the Kellogg Trust does not. The Kellogg Trust and the Leases are respondents to Marshack's cross appeal. The Leases own parcels 35 and 55, each of which has 10 feet "excepted, reserved[,] and/or made expressly subject to" an east-west easement, thus the contested 20 foot strip of property in this case. Clerk's Papers (CP) at 209.
The respondents identified in footnote one prevailed at trial and only Marshack cross appeals as stated in the opinion above.
"The `Landing' [or] `Steamboat Landing' . . . refers to that portion of the Easement which is located at the Columbia River." CP at 199. "The `Lane' refers to a 30 foot wide portion of the Easement which runs north from the Landing" to the Old Camas Highway. CP at 199.


The Kellogg Trust and the Leases filed a quiet title action, seeking a decree that Harrington had no rights in the plaintiffs' properties. On cross motions for summary judgment, the trial court granted partial summary judgment to Harrington, finding that she had an express appurtenant eastwest easement over a 20 foot right-of-way that followed the Old Camas Highway. The trial court ruled that the right-of-way is located on the two ten foot portions "excepted, reserved and/or made expressly subject to" an easement adjoining the Leases' two parcels. Clerk's Papers (CP) at 209. In reaching its decision, the trial court issued a memorandum of opinion stating the basis for its opinion. The trial court incorporated this memorandum into its findings of facts and conclusions of law as finding of fact 23. The Leases and Marshack appeal.


I. The Leases' Standing to Appeal

Harrington argues that the Leases have no standing to appeal the trial court's rulings regarding the width and location of the east-west easement because the trial court located the easement exclusively on the Kellogg Trust's property and within the 10 foot strips of property "excepted, reserved and/or made expressly subject to" an easement along the Leases' properties, with no part located on the Leases' properties. CP at 209. Therefore, the Leases are not an aggrieved party and cannot appeal. We agree.

Under RAP 3.1, "[o]nly an aggrieved party may seek review by the appellate court." According to our Supreme Court,

"[t]he word aggrieved . . . refers to a substantial grievance, a denial of some personal or property right, legal or equitable, or the imposition upon a party of a burden or obligation[.] . . . To render a party aggrieved by an order, so as to entitle him to appeal therefrom, the right invaded must be immediate, not merely some possible, remote consequence."

Sheets v. Benevolent Protective Order of Keglers, 34 Wn.2d 851, 855, 210 P.2d 690 (1949) (internal quotation marks omitted) (quoting 4 C.J.S. Appeal and Error § 183(b)(1), 365). Moreover, "`[t]he mere fact that one may be hurt in his feelings, or be disappointed over a certain result, or feels that he has been imposed upon . . . does not entitle him to appeal. He must be aggrieved in a legal sense.'" Sheets, 34 Wn.2d at 855 (internal quotation marks omitted) (quoting State ex rel. Simeon v. Superior Court, 20 Wn.2d 88, 90, 145 P.2d 1017 (1944)). Also, by analogy, the "basic rule of standing `prohibits a litigant . . . from asserting the legal rights of another.'" Dean v. Lehman, 143 Wn.2d 12, 18, 18 P.3d 523 (2001) (holding that spouses of Department of Corrections inmates have standing to challenge a statute that mandated a deduction from funds received by prison inmates) (quoting Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 281, 937 P.2d 1082 (1997)).

Here, the Leases assign error to the trial court's findings of fact and conclusions of law that a 20 foot easement is located within the 20 foot strip of land separating the Leases' north and south parcels of land. In their own words:

According to the trial court's rulings, the Leas[es]' parcels are separated by a strip of property 20 feet wide. The trial court placed the east-west portion of the easement precisely within this 20-foot strip. But the trial court erred in this regard. According to the plain language of the deeds creating the neighbors' easements, the east-west segment [of the easement] is 30 feet wide, and it is located 10 feet further south than was found by the trial court. Thus, rather than laying between the Leas[es]' parcels, the easement actually extends 20 feet into the Leas[es]' southern parcel.

Amended Br. of Appellant at 1 (emphasis added) (footnote omitted). The Leases do not refer to their own deed, which expressly states that each parcel contains a 10 foot exception, thus creating the 20 foot easement between their north and south parcels of property.

The Leases argue on appeal that the trial court should have both expanded the width of the easement and shifted it south so that the majority of the easement burdened their land. As they stated in their brief and at oral argument, they seek this result in order to "obtain the coverage they paid for in their title insurance policy." Amended Br. of Appellant at 28.

In fact, according to Harrington, if we were to grant the Leases' request, the easement would move to within 10 feet of the Leases' house.

The Leases may disagree with the trial court's decision but they are not aggrieved by it. The location of the easement placed no burden or obligation on the Leases, except as it affected their ability to establish a claim against their title insurance. Although they may be disappointed in the outcome, they have no substantial grievance and thus are not "`aggrieved in a legal sense.'" Sheets, 34 Wn.2d at 855 (quoting Simeon, 20 Wn.2d at 90). Even if the trial court's decision does affect their ability to successfully sue their title insurer, the effect appears not to be immediate but, rather, a "possible, remote consequence" of a subsequent or peripheral lawsuit against their title insurer. Sheets, 34 Wn.2d at 855.

On appeal, the Leases contend that "the trial court erred in its legal conclusion regarding the location and width of the east-west leg of the easement in the vicinity of [their] parcels." Amended Br. of Appellant at 28 (emphasis added). In essence, they assert the Kellogg Trust's legal rights, on whose land the easement rests; but the Kellogg Trust does not join the Leases' appeal. As such, on full review following oral argument, we hold that the Leases do not have standing and dismiss their appeal.

II. Marshack's Cross Appeal — Scope of the Easement

In her cross appeal, Marshack challenges the trial court's conclusion that the east-west easement's scope is "restricted to non-motorized vehicles, except for landscaping purposes." CP at 220. Marshack contends that the trial court "erred in failing to recognize the clear language of the easements as including vehicular use, repeatedly referring to the areas of the easement as a `road[,]roadway' or `highway.'" Br. of Resp't/Cross Appellant at 22.

The trial court did, however, rule that the restriction on vehicular use in the east-west easement "does not apply to the portion of the Easement which abuts the Marshack Properties." CP at 223. Thus, Marshack may drive motorized vehicles on her own land, including the easement over her land. Although Marshack challenges this conclusion of law, we can assume she challenges only the vehicle restriction over the remainder of the easement.

Marshack assigns error to finding of fact 102 and conclusions of law 113, 116, and 117. Finding of fact 102 provides, "The Court finds that the Easement shall be restricted to non-motorized vehicles, except for landscaping purposes." CP at 220. This is actually a conclusion of law and we treat it as such. City of Tacoma v. William Rogers Co., 148 Wn.2d 169, 181, 60 P.3d 79 (2002). Marshack does not challenge finding of fact 23 that incorporates the trial court's memorandum of opinion. Thus, Marshack challenges only the trial court's conclusions of law and we review the scope of this easement as a mixed question of fact and law. See Niemann v. Vaughn Cmty. Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005); Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003).

A trial court's decision is binding when it is formally incorporated into findings of fact and conclusions of law. State v. Michielli, 132 Wn.2d 229, 242, 937 P.2d 587 (1997). "A memorandum opinion may be considered as supplementation of formal findings of fact and conclusions of law." Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514, 523 n. 3, 22 P.3d 795 (2001). Here, Marshack does not assign error to finding of fact number 23 that incorporates the memorandum of opinion, so we treat the findings therein as verities on appeal. See In re Estate of Watlack, 88 Wn. App. 603, 609, 945 P.2d 1154 (1997).

A. Standard of Review

"Findings of fact are reviewed under a substantial evidence standard, which requires that there be a sufficient quantum of evidence in the record to persuade a reasonable person that a finding of fact is true." Pardee v. Jolly, 163 Wn.2d 558, 566, 182 P.3d 967 (2008). If substantial evidence in the record supports a trial court's finding of fact, we will not substitute our judgment for that of a trial court even though we may resolve the factual question differently. Pardee, 163 Wn.2d at 566.

"The interpretation of an [express] easement is a mixed question of law and fact. What the original parties intended is a question of fact and the legal consequence of that intent is a question of law." Sunnyside, 149 Wn.2d at 880 (citation omitted). Moreover, the construction of a deed "can best be described as a mixed question of fact and law . . . recogniz[ing] that the primary objective of deed interpretation is to discern the parties' intent." Niemann, 154 Wn.2d at 374. And under Washington's "context rule," trial courts can look to deed language and the circumstances surrounding its execution to assist in determining the meaning of words and terms used therein. Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 502-03, 115 P.3d 262 (2005).

B. Easement's Scope

In reviewing the trial court's decision about the scope of Marshack's east-west easement, we first look to the instrument creating the easement over the Kellogg Trust property, namely, the 1977 deed from Lester Kellogg to Donald and Kimiko Aase. The Kellogg-Aase deed describes the easement as a "right-of-way over and across real estate described as the `Old Camas Highway[,]' . . . the steamboat landing, and a strip of land 30 ft. wide leading to the steamboat landing." Ex. 51 at 2. The reference to the Old Camas Highway clearly pinpoints the location of the easement, but it does not indicate its scope. And although "an easement can be expanded over time if the express terms of the easement manifest a clear intention by the original parties to modify the initial scope based on future demands," the language in this instrument does not manifest such an intent. Sunnyside, 149 Wn.2d at 884.

Marshack points to her deed from the Aases as evidence that the scope includes driving motorized vehicles. This deed reads as follows:

TOGETHER WITH an easement for ingress and egress over and across a strip of land 30 feet in width, as said roadway now exists, leading from subject property to the "Steamboat Landing" as well as leading over and across that tract of land described as the "Old Camas Highway."

Ex. 52 at 1. But we look to the deed creating the easement for evidence of its scope, not deeds to successors-in-interest of the dominant estate. See Heg v. Alldredge, 157 Wn.2d 154, 161, 137 P.3d 9 (2006) ("An easement appurtenant which runs with the land" passes by deed to subsequent grantees and follows the land without mention in any deed.).

"[A] conveyance of the dominant tenement carries along with it the appurtenant easement, just as it does the other rights, whether the instrument of conveyance does or does not mention the easement." 17 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate: Property Law § 2.10, at 116 (2d ed. 2004).

And if we look to the Marshack-Aase deed, its broad language of ingress and egress, along with the word roadway, which may refer to either its location or its scope, make it difficult to determine the parties' intent. See 17 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate: Property Law § 2.9, at 110 (2d ed. 2004) ("When language is broad, e.g., `for ingress and egress,' then the easement holder may not make a use that is beyond the parties' intended uses, but their intent is harder to determine."). Thus, we cannot rely solely on these instruments to determine the scope of Marshack's easement.

Next, as did the trial court, we examine the extrinsic evidence in the record to see whether substantial evidence supports the trial court's finding on the parties' intent. Even though this easement was at one time a public highway over which vehicles traveled, this road was vacated and rebuilt in the 1920s and 1930s. Here, the record on appeal does not reveal any evidence of vehicular traffic in the decades between the property's use as a public roadway and the creation of the Marshack property's easement in 1977. Marshack testified that she drove down the easement dozens of times after she and her former husband purchased the property in 1984. But the trial court found her "testimony was contradicted by other neighbors and [her] former husband." And the trial court found "a lack of credible evidence of actual vehicular use by the parties to this action." CP at 220. Moreover, the trial testimony showed that the easement's use was limited to pedestrian travel.

Some aerial photographs from the 1930s indicated that "the use of the Lane was more intense than just pedestrian traffic." CP at 220.

All of these findings are unchallenged and we treat them as verities on appeal. In re Estate of Watlack, 88 Wn. App. 603, 609, 945 P.2d 1154 (1997). Furthermore, we will not consider whether Marshack's testimony was credible because credibility determinations are for the trier of fact. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002). Therefore, based on the "intentions of the original parties, the circumstances of the property when the easement was conveyed, and the practical interpretation given the parties' prior conduct or admissions," we hold that substantial evidence supports the trial court's findings that the intended scope of use of the easement was to limit use to non-motorized vehicular traffic. Sunnyside, 149 Wn.2d at 880.

III. Marshack's Cross Appeal — Prescriptive Easement

A. Standard of Review

Marshack also argues that the trial court erred in determining that she has no prescriptive rights to the private tidelands or pedestrian and vehicular use of the area in front of the Leases' house that is referred to as the Circle Drive. She challenges two findings of fact and conclusions of law relating to use of private tidelands owned by the Kellogg Trust and two findings of fact and conclusions of law relating to use of the circular driveway but, nevertheless, again fails to challenge findings from the incorporated memorandum opinion that are verities on appeal. See Watlack, 88 Wn. App. at 609. Therefore, we review the record to see whether substantial evidence supports the findings and then whether the findings support the trial court's conclusions of law related to Marshack's prescriptive easement claims. See Pardee, 163 Wn.2d at 566.

The trial court's findings and conclusions at issue are as follows:

108. The testimony of the Defendants only establishes a casual and infrequent use of the Private Tidelands, and is insufficient to establish a prescriptive right.

. . . .

113. To the extent that any of the above are actually Conclusions of Law, they are incorporated and repeated herein. CP at 221-22.

The trial court's findings and conclusion relating to the circular driveway are as follows:

112. The testimony of the witnesses fails to establish a consistent or continuous use of the Circular Driveway that is sufficient to establish a prescriptive easement. The draft road maintenance agreement is further evidence that Marshack was not making a prescriptive claim to the Circular Driveway.

. . . .

113. To the extent that any of the above are actually Conclusions of Law, they are incorporated and repeated herein.

CP at 221-22.

B. Prescriptive Easements

Prescriptive easements are disfavored "because they effect a loss or forfeiture of the rights of the owner." Kunkel v. Fisher, 106 Wn. App. 599, 603, 23 P.3d 1128 (2001).

To establish a prescriptive easement, a claimant must prove "use of the servient land that is: (1) open and notorious, (2) over a uniform route, (3) continuous and uninterrupted for 10 years, (4) adverse to the owner of the land sought to be subjected, and (5) with the knowledge of such owner at a time when he was able in law to assert and enforce his rights."

Drake v. Smersh, 122 Wn. App. 147, 151, 89 P.3d 726 (2004) (quoting Kunkel, 106 Wn. App. at 602). Continuous and uninterrupted use does not require proof of constant use; rather, "`the claimant need only demonstrate use of the same character that a true owner might make of the property considering its nature and location.'" Lee v. Lozier, 88 Wn. App. 176, 185, 945 P.2d 214 (1997) (internal quotation marks omitted) (quoting Double L Properties, Inc. v. Crandall, 51 Wn. App. 149, 158, 751 P.2d 1208 (1988)).

1. Private Tidelands

The trial court found, and we treat as a verity, that "the evidence fails to establish more than a casual use of the landing for picnics, swimming or rafting. The infrequent walks along the beach are neither continual nor adverse to the owner's interest." CP at 102.

Marshack argues that even her occasional walks along the beach constituted use more frequent than the actual owner — Kellogg. Kellogg testified that she used the beach "[v]ery little," use described by her former neighbor, Kathleen Burton, as once per year. RP (Aug. 28, 2006) at 104. But, according to the evidence before the trial court, if Kellogg's use was infrequent, Marshack's use appears similarly spare.

Kathleen Burton testified that she observed the Marshack family use the beach "six [or] seven times" over the years she lived there and saw Marshack and her ex-husband each walk toward the beach around a dozen times. Report of Proceedings (RP) (Aug. 29, 2006) at 544. Kellogg testified that nannies took the Marshack children down to the beach "maybe a couple of times a month, a week, not very often," even though she was largely unable to see the beach from her house. RP (Aug. 28, 2006) at 106.

Nicola Nelson, who worked for the Marshacks as a nanny for a year in the early 1990s, generally echoed Kellogg's testimony, testifying that she took the children to play on the beach regularly, perhaps even daily, in warmer weather. A former neighbor, Michael Guinn, testified in deposition that he had seen the Marshack family use the beach "occasionally in the summer." CP at 319. Marshack also submitted a few video clips of her family using the beach.

Here, we hold that the findings that are verities on appeal, as well as our own review of the evidence at trial, show that substantial evidence supports the trial court's findings that Marshack did not establish continuous use of the beach properties. Thus, the trial court did not err in concluding that Marshack has no prescriptive easement to walk on the Kellogg Trust's tidelands or beach.

2. Circular Driveway

We treat the following findings from the memorandum opinion as verities:

The testimony of the vast majority of the witnesses ha[s] failed to establish a consistent or continuous use sufficient to constitute a prescriptive right to the circular drive on Leas property. . . . In th[e] [Road Maintenance Agreement] the responsibility for maintaining the circular drive was designated as 60% to Guinn (a Leas predecessor) and 40% to Kellogg. No responsibility was assigned to Marshacks. This agreement was drafted by Mr. Marshack and one would assume if they were claiming the right to use the drive on a steady basis they would acknowledge their obligation to maintain same.

CP at 101-02.

Nelson testified that she used the driveway daily without permission and the trial court acknowledged Marshack's testimony "that she, her family and her staff regularly used the Circular Driveway." CP at 221. But the trial court also found that "[t]he testimony of the witnesses fails to establish a consistent or continuous use of the Circular Driveway." CP at 221. Marshack challenges this finding but to the extent that it represents a credibility determination of trial testimony by Marshack and Nelson, we do not substitute our judgment for that of the trial court. See Burrill, 113 Wn. App. at 868.

Testimony of other witnesses similarly fails to prove Marshack's continuous usage of the driveway. Joseph testified that he had never seen Marshack drive around the circular driveway until the property dispute arose and Julianne testified that it was only after the dispute that she ever saw Marshack's secretary use the driveway. A resident of the neighboring Steamboat Landing Subdivision, Sharon Ashe, who has lived in her house since 1994, testified that she has a good view of the circular driveway from her house and had witnessed Marshack using it only once.

Even Kevin Burton, the Leases' most recent predecessor-in-interest, testified that he could not remember ever seeing "any of [] Marshack's guests, family members, visitors, et cetera, drive their car around the circle drive." RP (Aug. 29, 2006) at 488. Kathleen Burton, a stay-at-home mom, echoed the testimony of her husband that, during the 15 years that she lived in the house, neither Marshack nor her clients or staff "use[d] the circle drive for the purpose of turning [] vehicles around." RP (Aug. 29, 2006) at 534. Guinn was asked at his deposition, "Did [the Marshacks] drive on your circle drive, as well?" He replied, "A lot of people did, and I just don't have a specific recollection of them driving on it. But I may not have noticed it and it wouldn't have meant anything to me had they done so." CP at 322. Marshack's ex-husband testified that, although he and Marshack typically used the circle to turn around their vehicles, he felt he had "implied permission from [the Burtons] to go ahead and do that." RP (Aug. 30, 2006) at 685.

We hold that those findings that are verities on appeal, as well as substantial evidence, support the trial court's finding that Marshack's use of the circular drive was not sufficiently continuous to establish a prescriptive right to drive on it and, again, its conclusion denying such a right was not erroneous.

IV. Marshack's Cross Appeal — Public Trust Doctrine Claim

Finally, Marshack, whose property has no beach access, argues that the trial court erred in ruling that the public trust doctrine does not grant members of the public the right to walk along the beach on privately owned tidelands of the Columbia River. Although the Kellogg Trust does not appeal, it is a respondent to Marshack's cross appeal on this issue.

Marshack owns parcels 77 and 78 in Clark County, Washington. Marshack's property has no beach access but is adjacent to the Kellogg Trust property, which consists of parcels 24, 25, and 37, as well as tideland number 500740. The Kellogg Trust property borders the Columbia River, including "[a]ll shore lands of the second class situated in front of and adjacent to, and lying directly South of [one of its parcels]." Ex. 53 at 3. Marshack argues that, under the public trust doctrine, she has a right to pedestrian travel along the beach areas of Kellogg's privately owned tidelands and that the trial court erred in holding otherwise. Marshack claims a right to walk on the beach located below the ordinary high water mark.

A. Standard of Review

Whether the public trust doctrine applies is a legal question. See Citizens for Responsible Wildlife Mgmt. v. State, 124 Wn. App. 566, 570-71, 103 P.3d 203 (2004). We review legal issues de novo. Sunnyside, 149 Wn.2d at 880.

B. Public Trust Doctrine

The question of "whether and under what circumstances the public has a right to enter upon or cross over private tidelands on foot" was explicitly reserved by our Supreme Court in State v. Longshore, 141 Wn.2d 414, 429 n. 9, 5 P.3d 1256 (2000). And, as Johnson pointed out in 1992 and as remains true today, our "Supreme Court has yet to consider whether the public has a right to walk across privately owned tidelands" and for what purpose. Ralph W. Johnson et al., The Public Trust Doctrine and Coastal Zone Management in Washington State, 67 Wash. L. Rev. 521, 569 (1992); Longshore, 141 Wn.2d at 429 n. 9. Thus, we must review the trial court's express ruling on what appears to be an unresolved issue about the public's right to pedestrian use of unsubmerged private tidelands.

By reserving the question, our Supreme Court arguably signaled that the question remains open and that prior case law does not provide an answer. See Ewa M. Davison, Comment, Enjoys Long Walks on the Beach: Washington's Public Trust Doctrine and the Right of Pedestrian Passage over Private Tidelands, 81 Wash. L. Rev. 813, 825-26 n. 90 (2006) (arguing that the public trust doctrine protects the right for public, pedestrian travel over unsubmerged private tidelands).

In Longshore, a criminal defendant in a second degree theft prosecution argued that naturally occurring shellfish on private tidelands were public trust resources that could not be conveyed into private ownership. 141 Wn.2d at 427-28.

"Since as early as 1821, the public trust doctrine has been applied throughout the United States `as a flexible method for judicial protection of public interests in coastal lands and waters.'" Weden v. San Juan County, 135 Wn.2d 678, 698, 958 P.2d 273 (1998) (quoting Johnson, The Public Trust Doctrine and Coastal Zone Management in Washington State, 67 Wash. L. Rev. at 524). This "doctrine developed out of the public's need for access to navigable waters" and "protects `public ownership interests in certain uses of navigable waters and underlying lands, including navigation, commerce, fisheries, recreation, and environmental quality.'" Citizens, 124 Wn. App. at 571 (internal quotation marks omitted) (quoting Weden, 135 Wn.2d at 698). As a navigable waterway, the public trust doctrine applies to the shores and banks of the Columbia River. See Great N. Ry. Co. v. Wash. Elec. Co., 197 Wash. 627, 639, 86 P.2d 208 (1939).

There are two parts to state ownership of tidelands and shore lands — the jus privatum and the jus publicum. "The jus privatum is the private property interest under which the state may convey title to these lands" and the jus publicum is the public interest. Citizens, 124 Wn. App. at 571 (emphasis omitted). "`The state can no more convey or give away this jus publicum interest than it can abdicate its police powers in the administration of government and the preservation of the peace.'" Weden, 135 Wn.2d at 698 (internal quotation marks omitted) (quoting Caminiti v. Boyle, 107 Wn.2d 662, 669, 732 P.2d 989 (1987)).

"`[I]ndividual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit.'" Longshore, 141 Wn.2d at 427-28 (quoting Phillips Petroleum Co. v. Miss., 484 U.S. 469, 475, 108 S. Ct. 791, 98 L. Ed. 2d 877 (1988)). Our Supreme Court did not expressly adopt the public trust doctrine until 1987 but it indicated then that the doctrine has always existed in Washington law. See Caminiti, 107 Wn.2d at 669-70. Our courts have extended this doctrine "beyond navigational and commercial fishing rights to include `incidental rights of fishing, boating, swimming, water skiing, and other related recreational purposes'" but without addressing the issue before us here. Orion Corp. v. State, 109 Wn.2d 621, 641, 747 P.2d 1062 (1987) (quoting Wilbour v. Gallagher, 77 Wn.2d 306, 316, 462 P.2d 232 (1969)).

Marshack suggests that Caminiti expanded the public trust doctrine to include "sunbathing, beach combing and playing on the open beaches." Br. of Resp't/Cross Appellant at 26; see 107 Wn.2d at 671, 677. In Caminiti, our Supreme Court upheld the constitutionality of a statute allowing "owners of residential property abutting state-owned tidelands and shore lands to install and maintain private recreational docks" without payment to the state. 107 Wn.2d at 671. This decision strengthens the notion that individual property owners of lands subject to the public trust doctrine may exert indicia of private ownership and exclude the public from access to or across the tidelands.

Application of the public trust doctrine does not seem to alter the rule that a tideland owner may at times exclude other persons. In Wilbour, our Supreme Court suggested that, under the public trust doctrine, individual property rights to periodically submerged, riparian property trump public rights in certain circumstances:

In such situations the riparian owners whose lands are periodically submerged are said to have the right to prevent any trespass on their land between the high and the low marks when not submerged. However, title between those lines is qualified by the public right of navigation and the state may prevent any use of it that interferes with that right.

77 Wn.2d at 315. And in Orion, where a tideland owner brought an action against the state and county alleging inverse condemnation by excessive regulation, the court stated:

Property includes a bundle of rights with respect to the physical thing. The bundle includes the right to possession and to exclude others, the right to use and enjoyment, and the right to dispose of the thing itself. Where an owner possesses a full bundle of property rights, the regulatory scheme's economic impact is determined by viewing the bundle in its entirety.

None of these "fundamental attributes of ownership" have been extinguished. Even if the State has denied Orion's right to make a present, reasonably profitable use of its property, the regulations continue to allow Orion to use its tidelands for education, research, and nonintensive recreation, uses that other parties may consider extremely valuable. Orion's right to dispose of its property and to exclude others also remains unaffected.

109 Wn.2d at 664-65 (emphasis added) (citations omitted). This language suggests that our Supreme Court did not contemplate pedestrian passage over private tidelands without the tideland owner's permission.

Marshack argues that swimming in a river is closely related to standing in the river and, therefore, walking along an adjacent beach. But "`fishing, boating, swimming, [and] water skiing'" more closely resemble activities done on or in the water, rather than on the beach, and a stroll along private property is far from "incidental" to navigation and commercial fishing. Orion, 109 Wn.2d at 641 (quoting Wilbour, 77 Wn.2d at 316).

Although Marshack points to various out-of-state decisions to support her argument, we decline to look beyond Washington law to resolve this dispute. Accordingly, we recognize that, in Washington, the public trust doctrine expressly protects certain rights to use navigable waters. Those rights are for "`navigation, commerce, fisheries, recreation, and environmental quality.'" Weden, 135 Wn.2d at 698 (quoting Johnson, The Public Trust Doctrine and Coastal Zone Management in Washington State, 67 Wash. L. Rev. at 524).

Marshack asks us to follow decisions of the Supreme Courts of New Jersey and Michigan. In Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 321-24, 471 A.2d 355 (1984), the New Jersey Supreme Court held that the public trust doctrine allows public access to and use of privately owned dry sand beaches as reasonably necessary for bathing, swimming, and other shore activities. The Matthews court explained, "The complete pleasure of swimming must be accompanied by intermittent periods of rest and relaxation beyond the water's edge." 95 N.J. at 325. In Glass v. Goeckel, 473 Mich. 667, 695, 703 N.W. 2d 58 (2005), the Michigan Supreme Court did not go as far as the New Jersey court, which allowed access to dry beach, but it did expand the public trust doctrine to include pedestrian travel over privately owned beach "below the ordinary high water mark."

We hold that, under existing authority, the public trust doctrine does not allow pedestrian use of private beach property without the owner's permission. Thus, the trial court did not err in ruling that Marshack has no right to pedestrian travel without permission over the Kellogg Trust's privately owned tidelands.

See generally 18 William B. Stoebuck John W. Weaver, Washington Practice: Real Estate: Transactions § 13.5, at 98-99 (2d ed. 2004).

We affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON, J. and HUNT, J., concur.

Summaries of

Kellogg v. Harrington

The Court of Appeals of Washington, Division Two
Apr 21, 2009
149 Wn. App. 1054 (Wash. Ct. App. 2009)
Case details for

Kellogg v. Harrington

Case Details

Full title:MARY A. KELLOGG, as Trustee, ET AL., Appellants, v. ROBERT HARRINGTON ET…

Court:The Court of Appeals of Washington, Division Two

Date published: Apr 21, 2009


149 Wn. App. 1054 (Wash. Ct. App. 2009)
149 Wash. App. 1054